Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 76939 

Corps is a part of the Department of the 

Navy). The defense agencies are the 

Defense Advanced Research Projects 

Agency, the Defense Commissary 

Agency, the Defense Contract 

Management Agency, the Defense 

Finance and Accounting Service, the 

Defense Information Systems Agency, 

the Defense Intelligence Agency, the 

Defense Logistics Agency, the Defense 

Security Cooperation Agency, the 

Defense Security Service, the Defense 

Threat Reduction Agency, the Missile 

Defense Agency, the National 

Geospatial-Intelligence Agency, the 

National Security Agency, the United 

States Special Operations Command, 

and the United States Transportation 

Command. 

* * * * * 

[FR Doc. 2012–31086 Filed 12–28–12; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 204, 215, 217, 219, 225, 

239, 241, 242, and 252 

RIN 0750–AH49 

Defense Federal Acquisition 

Regulation Supplement: Definition of 

Cost or Pricing Data (DFARS Case 

2011–D040) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule to 

amend the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

update the text to reflect the distinction 

between ‘‘certified cost or pricing data’’ 

and ‘‘data other than certified cost or 

pricing data.’’ The DFARS changes are 

necessary to ensure consistency with 

the Federal Acquisition Regulation 

(FAR) which had been amended to 

clarify the distinction between those 

terms, as well as the requirements for 

the submission of cost or pricing data. 

DATES: December 31, 2012. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, telephone 571–372– 

6099. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 77 FR 2680 on 

January 19, 2012. The comment period 

closed on March 19, 2012. This final 

rule updates the DFARS for consistency 

with FAR changes addressing the 

definition of cost or pricing data which 

clarified the distinction between 

‘‘certified cost or pricing data’’ and 

‘‘data other than certified cost or pricing 

data,’’ as well as the requirements for 

the submission of cost or pricing data 

(75 FR 53135, August 30, 2010). 

II. Discussion and Analysis 

Two respondents submitted 

comments. One respondent supported 

the rule without further comment, and 

the second respondent’s comment was 

non-substantive. Therefore, the DFARS 

is revised as proposed. 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

DoD does not expect this rule to have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the rule merely aligns the 

DFARS with the FAR. However, a final 

regulatory flexibility analysis has been 

performed consistent with 5 U.S.C. 604. 

This rule amends the DFARS to update 

the text addressing the definition of cost 

or pricing data by inserting the word 

‘‘certified’’ in front of ‘‘cost or pricing 

data.’’ The DFARS changes are 

necessary to ensure consistency with 

the FAR. The rule does not expand or 

diminish the existing rights of the 

contracting officer to obtain cost data or 

pricing data. Instead, this rule will 

benefit all entities, both large and small, 

by clarifying the requirements for the 

submission of ‘‘certified cost or pricing 

data’’ and ‘‘data other than certified cost 

or pricing data.’’ No comments were 

received in response to the initial 

regulatory flexibility analysis published 

with the proposed rule on January 19, 

2012. No comments were filed by the 

Chief Counsel for Advocacy of the Small 

Business Administration in response to 

the rule. The rule does not require any 

reporting, recordkeeping, or other 

compliances, or compel contractors to 

expend significant effort or cost. No 

known significant alternatives to the 

rule have been identified. A copy of the 

analysis may be obtained from the point 

of contact specified herein. 

V. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C 

chapter 35). 

List of Subjects in 48 CFR Parts 204, 

215, 217, 219, 225, 239, 241, 242, and 

252 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD amends 48 CFR parts 

204, 215, 217, 219, 225, 239, 241, 242, 

244, and 252 as follows: 

■ 1. The authority citation for 48 CFR 

parts 204, 215, 217, 219, 225, 239, 241, 

242, and 252 continues to read as 

follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 204—ADMINISTRATIVE 

MATTERS 

204.805 [Amended] 

■ 2. Section 204.805 is amended in 

paragraph (5) by removing ‘‘subject to 

cost or pricing data’’ and adding 

‘‘subject to certified cost or pricing 

data’’ in its place. 

PART 215—CONTRACTING BY 

NEGOTIATION 

■ 3. Section 215.403 is amended by 

revising the section heading to read as 

follows: 

215.403 Obtaining certified cost or pricing 

data. 

215.403–1 [Amended] 

■ 4. Section 215.403–1 is amended by— 

■ a. In paragraph (b) and the heading of 

paragraph (c) removing ‘‘cost or pricing 

data requirements’’ and adding 

‘‘certified cost or pricing data 

requirements’’ in its place; 

■ b. In paragraph (c)(4)(C) and the 

introductory text of paragraph (c)(4)(D) 

removing ‘‘cost or pricing data’’ and 

adding ‘‘certified cost or pricing data’’ 

in its place; 

■ c. In paragraph (c)(4)(D)(1) removing 

‘‘information other than cost or pricing 


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76940 Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 

data’’ and adding ‘‘data other than 

certified cost or pricing data’’ in its 

place; and 

■ d. In paragraph (c)(4)(D)(2) removing 

‘‘Cost or pricing data’’ and adding 

‘‘Certified cost or pricing data’’ in its 

place and removing ‘‘cost or pricing 

data threshold’’ and adding ‘‘certified 

cost or pricing data threshold’’ in its 

place. 

■ 5. Section 215.403–3 is amended by 

revising the section heading to read as 

follows: 

215.403–3 Requiring data other than 

certified cost or pricing data. 

* * * * * 

215.404–1 [Amended] 

■ 6. Section 215.404–1 is amended in 

paragraph (2)(i) by removing the word 

‘‘information’’ and adding the word 

‘‘data’’ in its place. 

215.404–2 [Amended] 

■ 7. Section 215.404–2 is amended by 

revising the section heading to read as 

follows: 

215.404–2 Data to support proposal 

analysis. 

* * * * * 

215.404–4 [Amended] 

■ 8. Section 215.404–4 is amended by— 

■ a. In the introductory text of 

paragraph (b)(1) removing ‘‘cost or 

pricing data’’ and adding ‘‘certified cost 

or pricing data’’ in its place; and 

■ b. In paragraph (c)(2)(C)(1)(i) removing 

‘‘cost or pricing data threshold’’ and 

adding ‘‘certified cost or pricing data 

threshold’’ in its place. 

215.407–5–70 [Amended] 

■ 9. Section 215.407–5–70 is amended 

in paragraphs (b)(2)(i) and (ii) by 

removing ‘‘cost or pricing data’’ and 

adding ‘‘certified cost or pricing data’’ 

in its place. 

215.408 [Amended] 

■ 10. Section 215.408 is amended by— 

■ a. In paragraphs (1)(i) through (iii) by 

removing ‘‘Cost or Pricing Data’’ and 

adding ‘‘Certified Cost or Pricing Data’’ 

in its place; 

■ b. In paragraph (2) by removing ‘‘cost 

or pricing data’’ and adding ‘‘certified 

cost or pricing data’’ in its place. 

PART 217—SPECIAL CONTRACTING 

METHODS 

217.7401 [Amended] 

■ 11. Section 217.7401 is amended by— 

■ a. In the introductory text of 

paragraph (c) by removing the word 

‘‘information’’ and adding the word 

‘‘data’’ in its place; 

■ b. In paragraph (c)(1) by removing 

‘‘Information in the proposal’’ and 

adding ‘‘Data in the proposal’’ in its 

place; and 

■ c. In paragraph (c)(2) by removing the 

word ‘‘information’’ and adding the 

word ‘‘data’’ in its place. 

217.7406 [Amended] 

12. Section 217.7406 is amended in 

paragraph (b)(3) by removing ‘‘of cost or 

pricing data’’ and adding ‘‘of certified 

cost or pricing data’’ in its place and 

removing ‘‘and cost or pricing data’’ and 

adding ‘‘and certified cost or pricing 

data’’ in its place. 

PART 219—SMALL BUSINESS 

PROGRAMS 

219.806 [Amended] 

■ 13. Section 219.806 is amended in 

paragraph (1) by removing ‘‘cost or 

pricing data’’ and adding ‘‘certified cost 

or pricing data’’ in its place and 

removing ‘‘FAR Subpart 15.4’’ and 

adding ‘‘FAR subpart 15.4’’ in its place. 

PART 225—FOREIGN ACQUISITION 

225.7303 [Amended] 

■ 14. Section 225.7303 is amended in 

paragraph (b) by removing ‘‘cost or 

pricing data’’ and adding ‘‘certified cost 

or pricing data’’ in its place. 

225.7304 [Amended] 

■ 15. Section 225.7304 is amended by— 

■ a. In paragraph (c) by removing ‘‘cost 

or pricing data’’ and adding ‘‘certified 

cost or pricing data’’ in its place, 

■ b. In paragraph (e)(3) by removing 

‘‘cost or pricing data’’ and adding 

‘‘certified cost or pricing data’’ in its 

place, and removing ‘‘Subpart 201.4’’ 

and adding ‘‘subpart 201.4’’ in its place, 

and 

■ c. In paragraph (h) by removing 

‘‘additional information concerning’’ 

and adding ‘‘additional data 

concerning’’ in its place and removing 

‘‘sufficient information to’’ and adding 

‘‘sufficient data to demonstrate’’ in its 

place and removing ‘‘This information— 

’’ and adding ‘‘This data—’’ in its place. 

PART 239— ACQUISITION OF 

INFORMATION TECHNOLOGY 

■ 16. Section 239.7406 is revised to read 

as follows: 

239.7406 Certified cost or pricing data and 

data other than certified cost or pricing 

data. 

(a) Common carriers are not required 

to submit certified cost or pricing data 

before award of contracts for tariffed 

services. Rates or preliminary estimates 

quoted by a common carrier for tariffed 

telecommunications services are 

considered to be prices set by regulation 

within the provisions of 10 U.S.C. 

2306a. This is true even if the tariff is 

set after execution of the contract. 

(b) Rates or preliminary estimates 

quoted by a common carrier for 

nontariffed telecommunications services 

or by a noncommon carrier for any 

telecommunications service are not 

considered prices set by law or 

regulation. 

(c) Contracting officers shall obtain 

sufficient data to determine that the 

prices are reasonable in accordance with 

FAR 15.403–3 or 15.403–4. See PGI 

239.7406 for examples of instances 

where additional data may be necessary 

to determine price reasonableness. 

PART 241— ACQUISITION OF UTILITY 

SERVICES 

241.201 [Amended] 

■ 17. Section 241.201 is amended in 

paragraph (3)(ii) by removing ‘‘cost or 

pricing data’’ and adding ‘‘certified cost 

or pricing data’’ in its place and 

removing ‘‘FAR Subpart 15.4’’ and 

adding ‘‘FAR subpart 15.4’’ in its place. 

PART 242— CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

242.7203 [Amended] 

■ 18. Section 242.7203 is amended in 

paragraph (b) by removing ‘‘cost or 

pricing data’’ and adding ‘‘certified cost 

or pricing data’’ in its place. 

242.7301 [Amended] 

■ 19. Section 242.7301 is amended in 

paragraph (c) by removing the word 

‘‘Subparts’’ and adding the word 

‘‘subparts’’ in its place. 

242.7302 [Amended] 

■ 20. Section 242.7302 is amended by— 

■ a. In paragraph (a)(2) by removing 

‘‘cost or pricing data’’ and adding 

‘‘certified cost or pricing data’’ in its 

place. 

■ b. In paragraph (b)(1) by removing 

‘‘Information reveals’’ and adding ‘‘Data 

reveals’’ in its place. 

242.7502 [Amended] 

■ 21. Section 242.7502 is amended in 

paragraph (g)(3)(ii) by removing ‘‘cost or 

pricing data’’ and adding ‘‘certified cost 

or pricing data’’ in its place. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.209–7009 [Amended] 

■ 22. Section 252.209–7009 is amended 

by removing the clause date ‘‘(DEC 


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Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 76941 

2010)’’ and adding ‘‘(DEC 2012)’’ in its 

place, redesignating paragraphs (a)(1) 

and (2) as (a)(i) and (ii), and in newly 

designated paragraph (a)(i) removing 

‘‘cost or pricing data’’ and adding 

‘‘certified cost or pricing data’’ in its 

place. 

252.215–7000 [Amended] 

■ 23. Section 252.215–7000 is amended 

by removing the clause date ‘‘(DEC 

1991)’’ and adding ‘‘(DEC 2012)’’ in its 

place and removing ‘‘Cost or Pricing 

Data-Modifications’’ and adding 

‘‘Certified Cost or Pricing DataModifications’’ in its place wherever it 

appears. 

252.215–7002 [Amended] 

■ 24. Section 252.215–7002 is amended 

by— 

■ a. Removing the clause date ‘‘(FEB 

2012)’’ and adding ‘‘(DEC 2012)’’ in its 

place; 

■ b. In the definition of ‘‘Significant 

Deficiency’’ in paragraph (a), removing 

‘‘rely upon information’’ and adding 

‘‘rely upon data and information’’ in its 

place; 

■ c. In paragraph (d)(1) removing 

‘‘protect the information as privileged’’ 

and adding ‘‘protect the data and 

information as privileged’’ in its place; 

■ d. In paragraph (d)(4)(ix) removing the 

word ‘‘information’’ and adding the 

word ‘‘data’’ in its place; and 

■ e. In paragraph (d)(4)(xi) removing 

‘‘Integrate information available’’ and 

adding ‘‘Integrate data and information 

available’’ in its place. 

252.217–7027 [Amended] 

■ 25. Section 252.217–7027 is amended 

by removing the clause date ‘‘(OCT 

1998)’’ and adding ‘‘(DEC 2012)’’ in its 

place, in paragraph (a) removing ‘‘cost 

or pricing data’’ and adding ‘‘certified 

cost or pricing data’’ in its place, and in 

paragraph (b) removing ‘‘cost or pricing 

data’’ and adding ‘‘certified cost or 

pricing data’’ in its place. 

252.243–7002 [Amended] 

■ 26. Section 252.243–7002 is amended 

by removing the clause date ‘‘(MAR 

1998)’’ and adding ‘‘(DEC 2012)’’ in its 

place, in paragraph (c)(1) removing 

‘‘Cost or pricing data’’ and adding 

‘‘Certified cost or pricing data,’’ in its 

place, and in paragraph (c)(2) removing 

‘‘Information other than cost or pricing 

data’’ and adding ‘‘Data other than 

certified cost or pricing data’’ in its 

place and removing ‘‘cost or pricing 

data’’ and adding ‘‘certified cost or 

pricing data’’ in its place. 

[FR Doc. 2012–31088 Filed 12–28–12; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 225 and 252 

RIN 0750–AH82 

Defense Federal Acquisition 

Regulation Supplement: New 

Qualifying Country—Poland (DFARS 

Case 2012–D049) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to add Poland as a qualifying 

country. 

DATES: Effective Date: December 31, 

2012. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy G. Williams, telephone 571–372– 

6106. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is amending the DFARS to add 

the Republic of Poland as a qualifying 

country. On August 27, 2011, the U.S. 

Secretary of Defense signed a new 

reciprocal defense procurement 

agreement with the Polish Minister of 

National Defense. This agreement was 

placed into force on July 19, 2012. The 

agreement removes discriminatory 

barriers to procurements of supplies and 

services produced by industrial 

enterprises of the other country to the 

extent mutually beneficial and 

consistent with national laws, 

regulations, policies, and international 

obligations. The agreement does not 

cover construction or construction 

material. Poland is already a designated 

country under the World Trade 

Organization Government Procurement 

Agreement. 

II. Publication of This Final Rule for 

Public Comment Is Not Required by 

Statute 

‘‘Publication of proposed 

regulations’’, 41 U.S.C. 1707, is the 

statute which applies to the publication 

of the Federal Acquisition Regulation. 

Paragraph (a)(1) of the statute requires 

that a procurement policy, regulation, 

procedure or form (including an 

amendment or modification thereof) 

must be published for public comment 

if it relates to the expenditure of 

appropriated funds, and has either a 

significant effect beyond the internal 

operating procedures of the agency 

issuing the policy, regulation, procedure 

or form, or has a significant cost or 

administrative impact on contractors or 

offerors. This final rule is not required 

to be published for public comment, 

because it does not constitute a 

significant DFARS revision within the 

meaning of FAR 1.501–1, does not have 

a significant effect beyond the internal 

operating procedures of DoD, and will 

not have a significant cost or 

administrative impact on contractors or 

offerors. Poland is added to the list of 

22 other countries that have similar 

reciprocal defense procurement 

agreements with DoD. 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

The Regulatory Flexibility Act does 

not apply to this rule because this final 

rule does not constitute a significant 

DFARS revision within the meaning of 

FAR 1.501–1 and 41 U.S.C. 1707 does 

not require publication for public 

comment. 

V. Paperwork Reduction Act 

This rule affects the certification and 

information collection requirements in 

the provisions at DFARS 252.225–7000 

and 252.225–7035, currently approved 

under OMB Control Number 0704–0229, 

titled DFARS Part 225, Foreign 

Acquisition, and Associated Clauses, in 

accordance with the Paperwork 

Reduction Act (44 U.S.C. chapter 35). 

The impact, however, is negligible, 

because it merely shifts the category 

under which items from Poland must be 

listed. 


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